October 21, 2004

Lawprof Charles Fried, in a NYT op-ed, delivers a pithy analysis of what's at stake in Supreme Court appointments:

Democrats fear a court that will embrace the constitutional rigidities of its most conservative members. Republicans fear a court that will once again seek to impose in the name of the Constitution the agenda of a liberal elite. I fear an indefinite and incoherent prolongation of a fin-de-siècle jurisprudence, where the court serves as nothing more than an ad hoc arbiter of issues it finds too difficult to decide in a principled way.

But there is some force in the Supreme Court microcosm that produces a moderate center. Fried wishes one or the other of the grand visions would prevail. (Though, clearly he prefers the conservative side, about which he says: "I would call [their doctrines] liberal with a small l, the liberalism of classic individualism... not, as their opponents have caricatured them ... extreme or lacking in nuance.")

I tend to think whoever becomes President will find it difficult to appoint a Justice who will give a decisive majority vote to one side or the other. You may find this balance of extremes with a moderate center an unstable condition that must, sooner or later, give way to one or the other of the clear positions. But perhaps not. Perhaps there is something utterly stable about the current balance. Even as Justice Brennan's replacement found himself drawn into the vacated niche, so may Justice O'Connor's replacement feel compelled to play The Moderator.

UPDATE: Lawprofs Stephen Bainbridge and Jack Balkin also take on Fried. They characterize Fried as making a "simple error" in not perceiving the role Justice O'Connor plays. My reading of Fried is that his piece is all about implying that O'Connor is a big problem that needs to be solved. I'm willing to bet Bainbridge and Balkin that Fried has a sharp comprehension of the situation!